How to Qualify as a Foreign Business in New Hampshire

Learn the rules for qualifying your LLC to do business in New Hampshire.

If you own a business that was created in a state other than New Hampshire, you will need to qualify or register that business in New Hampshire if you want to do business there. Here is an overview of the rules on how to qualify your foreign (non-New Hampshire) limited liability company (LLC) to do business in New Hampshire.

What is a Foreign LLC?

For New Hampshire purposes, if your LLC is formed in another state, then it is known as a foreign LLC in New Hampshire. In other words, foreign doesn’t mean from another country. Instead, it means your business was organized under the laws of another state. A domestic LLC, on the other hand, is one that is formed in the state where it is doing business. This is common usage throughout the United States. For example, an LLC formed in Alabama is a foreign LLC in Mississippi.

Doing Business in New Hampshire

According to New Hampshire’s LLC Act, you are required to register your foreign company with the state of New Hampshire if you are “doing business” in New Hampshire.What does this mean? Well, like most states, New Hampshire’s LLC Act does not specifically define thephrase “doing business” in relation to foreign registrations.

However, state laws governing when foreign companies must collect state sales tax in their state provide some guidance on the issue. Under these laws, a business must have a physical presence in—or nexus with—the state in order to be required to collect state sales tax on sales to that state’s residents. Generally speaking, physical presence and nexus are synonymous, and mean having:

a warehouse in the state

a store in the state

an office in the state, or

a sales representative in the state.

Certain exceptions may apply and the rules can get more complicated with things like Internet sales. Nevertheless, in general, if you have an office, a store, a warehouse, or employees in another state, you will need to qualify your LLC as a foreign company in that state. For more details, including some possible distinctions between physical presence and nexus, check Nolo’s articles on Internet Sales Tax: A 50-State Guide to State Laws.

Certain Activities Are Exempt

Like most states, New Hampshire’s LLC Act specifies certain activities that do not constitute doing business in the state. The items listed include:

defending or settling a lawsuit

dealing with internal business affairs such as holding member or manager meetings

having a bank account in the state

having an office, agency, or persons in the state for handling your company’s own securities

selling through independent contractors

soliciting or obtaining orders where the orders require acceptance outside the state before they become contracts

creating or acquiring indebtedness, mortgages, and security interests in real or personal property

securing or collecting debts

owning, without more, real or personal property

conducting an isolated transaction that is completed within 30 days and is not one in the course of similar, repeated transactions; and

transacting business in interstate commerce.

For the actual legal description of each of these items, check Section 304-C:174 of the New Hampshire Limited Liability Company Act.

If your LLC’s only activity in New Hampshire is one or more of the listed items, you should not need to register with the state.

Application for Registration

To register your business in New Hampshire, you must file an APPLICATION FOR REGISTRATION AS A FOREIGN LIMITED LIABILITY COMPANY with the New Hampshire Department of State (DOS). You can download a copy of the application form from the DOS website.

To complete the form, you must provide more or less the same information that you need to create an LLC in your home state.However, since every state is a little different, there may be items that New Hampshire asks for that you did not need to provide when you first organized your LLC.More specifically, for a New Hampshire application for registration, you need to provide:

the name of your LLC as registered in the state where it was formed

the name under which your LLC will do business in New Hampshire, which must contain the words “Limited Liability Company”, the abbreviation “L.L.C.,” or a similar abbreviation (if your LLC’s original name is already being used by another New Hampshire business, you must apply for a trade name using a separate application)

the name and street address and of your registered agent in New Hampshire, and

an authorized signature.

The DOS form also includes a statement that offer or sale of LLC membership interests will comply with specific New Hampshire securities laws. If you are registering a professional LLC, you must use a different application form. The filing fee is $100. The filing fee for a trade name application, if necessary, is $50.

What Happens if You Don’t Register?

If your LLC does business in New Hampshire without being registered, it cannot bring a lawsuit in the state. It also will be liable for fees and penalties. However, not being registered does not invalidate your LLC’s contracts or prevent the LLC from defending a lawsuit in the New Hampshire. Also, a member or manager of the LLC is not liable for the LLC’s obligations solely because the company did business in New Hampshire without registration.

Registering a Foreign Corporation

If your business is organized as a corporation rather than an LLC, the rules and requirements for foreign qualification in New Hampshire are similar. You will, however, have to use a different application form, Form 40,Application for Certificate of Authority - For Profit Foreign Corporation. See the New Hampshire Department of Statewebsite for forms and filing instructions.